Station:   KHOW, 630 AM

Show:      Mandy Connell Show

Guests:    Brauchler

Link:       http://www.iheart.com/show/139-Mandy-Connell/

Date:       August 1o, 2015

Topics:    Aurora Theater Shooting Verdict, Sentencing, Death Penalty, Life in Prison without Parole, Jurors, Juror 17, Capital Punishment, Jury Selection, Defense, Public Defender, Prosecutor,  Deliberation, Aggravation, Mental Health, Quinnipiac Poll, Political Ambition, Politicizing, Legislature, Rogue Juror

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[The following are notes and paraphrased representations of comments made in a broadcast interview, except where noted as actual quotes]

HOST MANDY CONNELL:

• verdict in Holmes — coulda knocked me over with a feather.  Brauchler was the DA.  how long did you prepare?

ARAPAHOE COUNTY DISTRICT ATTORNEY GEORGE BRAUCHLER:

• tough to say
• started in July 20, 2012
• last year — really started
• jury selection in January 20, 2015
• wrapped up on Friday

CONNELL:

• Jury selection:  most were floored by verdict — i imagine you were too

BRAUCHLER:

• Well, yes, but remember this, though — and I was
• but when the press has reported this as the jury’s verdict — it was not
• there was one holdout juror opposed to death
  • that came pretty clear
  • and we’re going to continue to talk to jurors to find out what it was that took place back there
  • but by function of law, when there is not unanimity on death, it defaults to life
  • so the jury did not come back and vote life
  • we were one vote away from getting what I thought was the just sentence there

CONNELL:

• Let me focus on that one vote for a second.  You know, I’ve said this. I waffle on the death penalty. but if I were ever on a jury called for a death penalty case, I would have be up front about that, and then allow the prosecution to exclude me based on you know, his or her right to do so.  I think it’s an important thing to be honest about that.  Do you feel like all of the jurors were honest about their feelings about the death penalty as you went through the jury selection process?

BRAUCHLER:

• You know, I’d say for the jurors we got, and the alternates, I want to be in the position where I believe that they were truthful and honest.  And that something about the facts of this specific case or this specific defendant resonated with morals and conscience of this juror that held out.  I don’t want to believe that jurors would lie to put themselves in a position to send a message or thwart the process.  And frankly, throughout the process, and you know how many jurors we spoke to — I mean, we sent out 9,000  — there were a ton of jurors who said whatever they needed to say to get out of service.

CONNELL:

• Right.

BRAUCHLER:

• And so, could somebody say something and get through the system and make it on?  they could.  But I don’t want to start from that premise in this case.  I respect this system.  I believe in this system.  And until some other information comes out, I’m just going to believe that this was a matter of conscience for this juror.  And that’s what this system is set up to do.

CONNELL:

• difficult about this case:  I think you showed effectively that Holmes was aware of the rightness or wrongness of what he did.  I read his journal.  I think as a member of the jury, that would have been a hang up for me.  Obviously, he wasn’t mentally right. although legally sane

BRAUCHLER:

• remember, the hang up was with one
• 11 other people went through that journal
• and at 3 different phases in deliberations, did not blink
• they were out for, what? — a day to disregard the not guilty by reason of insanity — to reject it.
• they were out for several hours for aggravation
• they were out 2.5 hours in weighing the aggravation against his mental health
  • 2.5 hours is a blink!
• and then they came back, and my understanding from the juror that has spoken so far, is that this juror, for the very first time, revealed that they were intractable on the issue of putting this guy to death — that mental health may have been the issue
• The notebook:  you take a look at that and if you want to start from the premise that this guy has mental illness, then that’s what you’ll see in there.

CONNELL:

• Right.

BRAUCHLER:

• But this guy took a class that he got an ‘A’ in, in undergrad, a “Philosophy and [inaudible] of Life” class.  And if you go back and look at some of the writings that he was taught back then, they are not inconsistent with a lot of the things that he put in there.  For example, people make a big deal about him saying that what takes place before life is the same as the after life. Well, that might be a different way to phrase what death is or the non-existence of life.  But, that’s philosophy.  That’s not a mental issue.  This is a guy who convinced himself, and i believe this, this was an outcome looking for a justification.  He had had a life-long hatred of mankind because they made him feel weird, different, small, and uncomfortable.  And he got to the point where the only other outlet he had, the only other option he had for his future was schooling or the potential of being like Dad, and getting married and having a family.  And in the same month, both of those things came off the tracks.  And I think this guy decided, “that’s it, and I’m going to act on something that i have suppressed for 10 years

CONNELL:

• Punditry and commentary over the weekend saying that the fact that James Holmes didn’t get the death sentence in colorado basically means that we don’t have a death penalty in Colorado. Does this change your approach as a District Attorney going forward?  Do you maybe give more consideration to the jury’s unwillingness to participate in the death penalty before you decide to pursue this.  How are you going to pursue death penalty cases in the future?

BRAUCHLER:

• Look, my approach is unchanged from this.  And again, we keep saying ‘the jury, the jury’.  It’s one juror.  So, is there always a risk in every trial that one juror upends the apple cart?  Yes.  But in those cases, if there was a hung jury and a mistrial, you’d get to try it again.  But only in this kind of a case can one juror upend the apple cart permanently, because you don’t get a hung jury in death.  You either get death by unanimity or it defaults to life.  And my approach to this is — and I said this at the press conference on Friday  — if somebody spends 2 and half months planning the death of hundreds of people — helpless, innocent people — in a box called a theater, and they’re able to kill 12, injure 70, and put the rest in fear for their lives, I am going to most likely pursue the death penalty for them.  This mental health defense of theirs was weak at best, and roundly rejected at every phase of the trial.  And, was rejected for death, with the exception of one juror.  So, I don’t think one juror’s reluctance to impose death should be veiwed as a litmus test by the state of Colorado on a penalty that a  Qunnipiac poll the week before had said Coloradans favored 2 to 1.

CONNELL:

• Criticism that came to Mandy on FB.  This is probably you’re going to have to respond to.  Marty said,  “Life without parole was put up on the table by the killer’s mouth piece before the trial. Some serious ego problems here, since the death sentence in this state would most likely be life without parole.”  How do you respond to that?  I mean, you kind of  just did, but that’s probably a criticism that will be levied by a lot of people who say, “This trial cost a fortune, there are no guarantees, as you just said.  Is there a better way to go about it?

BRAUCHLER:

• Yeah
• and, No, there isn’t
• and a couple things about that.
• One, people who are opposed to the death penalty are going to find reasons to accuse me or any other prosecutor for seeking it.  And the most likely targets are, “Oh, it must have been ego, or it must have been political ambition.” Look.  This guy walked into a theater and in the early morning hours of July 20, 2012 with 700 rounds of ammunition, most of it steel piercing armor.  He came in, armored head to toe, not a millimeter of flesh exposed to injury and he came there with the intent of becoming the biggest mass murderer in the history of the country.  If the decision to seek death on that guy can be viewed as something other than the pursuit of justice and an attempt to distinguish his heinous, murderous acts from those of someone who only killed one other person — and I’m using air quotes for that — that’s ridiculous.  Now, in terms of the cost, the cost of this case was not amplified because of the death penalty.  It was amplified because of the mental health issues.  And that’s something that Colorado needs to take a strong look at — is how our laws are set up to allow defense attorneys and defendants to willy-nilly throw out the idea of insanity and then put the entire burden on the state to disprove it.  That’s the cost, here.  I mean, think about it!  If we didn’t have the death penalty here, for those people who say, “Oh, should have taken the deal.”  If Colorado didn’t have the death penalty, Mandy, do you think this trial still goes?  Or do you think the public defenders show up and go, “Well, the worst thing that can happen to us is life in prison.  We might as well just give that to you.”  [that is] never going to happen.  This trial still goes, and the only difference is, it’s probably 3 weeks shorter on jury selection, and 3 weeks shorter at the end of the trial.  But the massive expense of this was all about mental health.

CONNELL:

• chance to speak with family members?

BRAUCHLER:

• I have
• i’ve spoken
• not all the ones who would want to speak
• but main consideration — input from victims’ family
• there’s not unanimity
• you’ll never get unanimity on the correct outcome
• significant numbers from both camps
  • for death
  • for life and wanted it to be over
  • but it was heartening, people who had given up their lives to a person, came to me and said, I get it.  I know why you have to do this.  We might prefer life, but we get it
• one of the main considerations that i had — was to make sure that I had meaningful input from the victims.

CONNELL:

• You team didn’t leave one single stone unturned.  people were frustrated by the length of time.  And i said we had to cover against the possibility of appeals going forward.  And i think you did that.  Can he get life with parole on appeal?

BRAUCHLER:

• not under our law —there’s no such thing
• by the way, see that coming.  This is what I see coming.   [iN the] next legislative cycle, you’re going to have the left wing of the legislature run bills to kill off the death penalty, citing this one juror’s decision to upend the apple cart, here.  But the next thing that will happen, if the death penalty goes away here in Colorado, prepare to see that same lobby start attacking life without parole, saying, “You know what?  We really ought to go back to the seventies.  Why?  I mean, Murder ought to be 40 years.  or murder ought to be 20 years.  This is not the right direction for Colorado, and Coloradoans know that, too.  But I appreciate the compliment on the trial.  People ask, “Why did it take so long?”  One, the defense made a big deal of saying, “hey, we’re not contesting that he did it.”  Well, they never admitted he did it — not a single word.  So, they didn’t concede .  they didn’t stipulate to him being the murderer.  They didn’t stipulate to our evidence.  So we had to put it on.  And if this case took a long time, it’s because that guy made 82 victims.  82 victims!  you don’t put that on in a week.

[Brauchler discusses his surprise at the Life sentence without parole handed down to James Holmes in the Aurora Theater shooting case, after one juror balks at imposing the death penalty.  Brauchler addresses his rationale for seeking death, criticisms of his prosecution, and also speculates about what’s coming in the next legislative session to attack the death penalty and other sentencing laws.]